Professor Cheryl Saunders, Consultant
Politics and Public Administration Group
15 August 2000
Vision in Hindsight
Vision in Hindsight is a Department of the
Parliamentary Library (DPL) project for the Centenary of
The Vision in Hindsight: Parliament and the
Constitution will be a collection of essays each of which
tells the story of how Parliament has fashioned and reworked the
intentions of those who crafted the Constitution. The unifying
theme is the importance of identifying Parliament's central role in
the development of the constitution. In the first stage, essays are
being commissioned and will be published, as IRS Research Papers,
of which this paper is the seventh.
Stage two will involve the selection of eight to
ten of the papers for inclusion in the final volume, to be launched
in conjunction with a seminar, in November 2001.
A Steering Committee comprising Professor
Geoffrey Lindell (Chair), the Hon. Peter Durack, the Hon. John
Bannon and Dr John Uhr assists DPL with the management of the
Centenary of Federation
Part 1: The Vision
Part 2: Framework for the Referendum
Part 3: Initiation and Review
Part 4: Hindsight
This paper is one of a series written to mark
the centenary of the Australian Constitution in 2001. From the
outset, the prescribed procedure for altering the Constitution has
required that a bill setting out the proposed changes first be
passed by the Parliament, before being submitted to electors voting
in a referendum. In 2001 Australia will have had 100 years
experience of a still relatively unusual form of partnership
between the institutions of representative and responsible
government and the electors, voting directly. The paper examines
this experience, in the light of the expectations of the framers of
the Constitution. It suggests reasons for the obvious and growing
gap between the views of Parliament and voters on constitutional
change. It identifies ways in which the process of altering the
Constitution might be assisted to operate in a way that is more
The paper is timely for reasons more pressing
than the commemoration of the centenary. At the turn of the
century, a stalemate has been reached in relation to changing the
- of 44 proposals accepted by the Parliament and put to
referendum, only eight have been approved, two of which were minor,
- there is some evidence that the difference of view between
Parliament and people is becoming more marked. One of the two most
recent referendums, proposing the establishment of a republic,
failed despite apparently high levels of public support for a
republic in principle (although the actual views of the Parliament
were unclear in this case). The previous four proposals, put to
referendum in 1988, failed with an historically high 'no'
While people will have different opinions about
the merits of particular referendum proposals, on any view the
record of rejection suggests a waste of energy and money. It also
contributes to a defeatist attitude towards the prospect of
constitutional change, which prevents serious consideration of
constitutional change as an option for dealing with significant
national problems. By way of example, little serious consideration
has been given to changing the Constitution to deal with the
current uncertainty about the validity of the Corporations Law; and
the Corporations Law itself is the product of an earlier failure to
seek constitutional change.
The paper shows that:
- the framers of the Constitution adopted the referendum for
progressive, democratic reasons, although some details of section
128 were influenced by familiar tensions between central and state
- the framers thought that the requirement for the Parliament to
initiate proposals to be put to referendum would both provide an
important filter and assist public understanding of the proposals,
- the framers expected that the Australian Constitution would be
less rigid than the Constitution of the United States.
Reasons for the referendum record
The paper suggests that the general explanation
for the high rate of rejection of referendum proposals is the
failure of successive Parliaments and governments adequately to
adapt practices developed in the context of representative
government to the quite different demands of the referendum. This
manifests itself in:
- the highly adversarial character of most debate on
- the lack of importance that has been attached to an
understanding of the Constitution on the part of people born in
Australia or those migrating to the country
- the lack of an accepted process for public consultation on
constitutional issues, and
- the inadequacy of the procedures for informing voters about
particular proposals for change at the time of a referendum.
To overcome the perceived obstacles to
constitutional change, often analysed by reference to
'bipartisanship', four general constitutional reviews have been
conducted since federation, at intervals of roughly 25 years. The
paper shows that each of these reviews, in its own way, also was
subject to a degree of political intervention that seriously
impeded its effectiveness. A fifth process, of a different kind,
the Constitutional Convention of 1999, attracted widespread public
interest and enthusiasm at the time. Even the Convention was
flawed, however, for the purpose for which it was established. The
ambiguity of its relationship with both the Parliament and the
voters ultimately was reflected in the quality and acceptability of
the proposal that was put to referendum.
They said it
Some lighter moments in the paper are supplied
by quotes from the past. For example:
- Samuel Griffith in 1891 feared that Australians would not be
able to come to grips with the detail of a proposal to change the
Constitution although 'if the question were to be simply a kingdom,
or a republic, there might be a plebiscite on that'
- Prime Minister Fisher, introducing the statutory requirement
for distribution of the 'yes/no' cases in 1911, predicted 'no doubt
at all that the cases will be put from both sides impersonally and
free from any suggestion of bias', and
- one problem with the 1999 Convention was anticipated by
Playford in 1891: '...in this mode of convention you can never
ascertain correctly the views of the people. You only ascertain the
views of the men who have been elected members of the
Broad options for the future, which are
cumulative and not mutually exclusive, include the following:
- recognise and accept that approval by referendum requires a
different approach to government
- take a longer-term view of constitutional issues within the
Parliament and minimise unnecessary partisanship
- find practical measures to make it clear that discussion of the
Constitution is natural, important and need not be divisive. This
might be done by, for example, establishing a joint standing
committee of the Parliament, charged with making an annual or, at
least, regular, report on the Constitution in accordance with
agreed terms of reference
- hold referendums in conjunction with elections unless there is
a compelling reason not to do so, in the interests of minimising
cost and controversy over cost.
- Ascertain and take into account the views of voters at the time
a proposal for change is being developed. The manner in which this
is done is likely to depend on the nature of the proposal
- provide more sophisticated and effective procedures for helping
voters to understand proposals for change in the approach to a
referendum. An independent body might be given the responsibility
to design and execute an information program, with a right of
review to ensure that the program is balanced and fair, and
- give priority to enabling and encouraging Australians to
understand and engage in discussion on the Constitution and system
Some of these options may appear utopian, given
Australia's robust political culture. In reality, however, there is
little other choice. There is no prospect of removing the
referendum requirement from the Constitution. Nor would it be
desirable to do so, even if it were possible: the trend towards
greater involvement of people in major public decisions, which the
framers observed in the 1890s, is even more marked 100 years later,
not only in Australia but elsewhere in the world. If the Parliament
is to remain the sole filter for referendum proposals it is
necessary to make the partnership work, in order to deal with
national problems for which constitutional change is the best or
The Australian Constitution can be altered only
by a procedure that involves both the Parliament and the people
voting directly in a referendum, in accordance with section
In normal circumstances, a proposed law to alter
the Constitution must be passed by both the House of
Representatives and the Senate, with absolute majorities. There is
also, however, a hard-won deadlock procedure, whereby a proposed
law may be put to referendum if passed by one House alone. The
procedure requires one House to pass the bill twice, with absolute
majorities, and for an interval of three months to elapse between
the second passage of the bill and the date on which the other
House first indicated its disagreement.
The Constitution is not altered until a proposed
law, passed by the Parliament, also is approved at referendum. All
electors qualified to vote for the House of Representatives in each
State and, since 1977, in most territories,(2) are
entitled to vote in a referendum. Two majorities are required to
signify approval: a majority of all electors voting and a majority
of electors voting in a majority of States. Where both Houses pass
a proposed law, section 128 specifies that the referendum must be
held within two to six months. On the face of the section, a
referendum apparently is mandatory once a proposed law has passed
both Houses.(3) The section does not confer
responsibility on anyone in particular, however. By contrast, where
the deadlock procedure applies, the Constitution does not specify a
time limit for the referendum. Instead, it confers on the
Governor-General authority to submit the proposed law to
referendum. .(4) This authority appears to be
discretionary but in fact is consistent with polite drafting style
used elsewhere in the Constitution in relation to the
Crown.(5) Once approved at referendum, a bill must
receive the Queen's assent from the Governor-General before the
alteration takes effect.
Section 128 also requires a majority of electors
in an affected State or States to approve a proposed law in certain
cases. This additional requirement applies to alterations that
would diminish the proportionate representation of a State in the
Parliament or its minimum number of Members of the House of
Representatives or would alter the limits of a State or affect the
provisions of the Constitution relating to State
An odd caveat in the third paragraph, long since
overtaken by events, enables only one half of the votes in a
referendum to be counted in any State with adult suffrage, until
the qualifications of electors for the House of Representatives are
uniform. The explanation lies in the unusually early extension of
the right to vote to women in South Australia, still the only
Australian colony to have taken this step as the Constitution
drafting process reached its final stages, in 1897-98. As an
interim measure, the draft Constitution also provided that State
laws on the qualification of voters would apply in Commonwealth
elections until the Commonwealth Parliament passed its own
electoral law.(7) The requirement to halve the votes in
States with adult suffrage was included to prevent such States
receiving what was perceived to be an undue advantage in a
referendum.(8) It became redundant when the Commonwealth
Franchise Act was passed in 1902, conferring the vote on both women
and men, with the now notorious exception of 'Aboriginal
The Australian Constitution was drafted at a
time of speculation about the use of the referendum around the
world and some experimentation with it. The form of the referendum
adopted by Australia was passive, leaving the initiative with the
Parliament. Nevertheless, the inclusion in the Australian
Constitution of a requirement for change to be approved by the
voters was unusual and, at first blush, surprising. The Australian
colonies were familiar with Westminster-style representative
government, and the new federal Constitution incorporated these
principles as well. The addition of a referendum inevitably raised
questions about the role of the Parliament, already complicated by
the more familiar tension between Parliament and the executive,
under a system of representative and responsible government.
Part 2 of this paper examines the reasons why
the framers of the Australian Constitution chose the Constitution
alteration process now prescribed in section 128, and their
expectations of it. Some of their expectations related to
particular aspects of the process and were specific. It is possible
also to glean an impression of the prevailing expectations on more
general matters. These include the role of the Commonwealth
Parliament and of the Houses individually, the issues that might
arise in relation to use of the referendum and the degree of
difficulty of altering the Constitution by this means. The
remainder of the paper focuses on the way in which the procedure
has worked in practice, with particular reference to the
Parliament. Section 128 confers two broad functions on the
Parliament. First, Parliament provides the regulatory framework for
a referendum vote.(10) This is the subject matter of the
third part of this paper. Secondly, only the Parliament can
initiate proposals to alter the Constitution. This is considered in
the part that follows.
A Constitution alteration procedure does not
operate in a vacuum. It is affected by political culture, the rest
of the political process, the nature of the Constitution and the
substantive constitutional issues that arise from time to time. In
Australia the procedure has been further affected by continuing
divisions between the major political parties in relation to the
Constitution, some of which may be inherent,(11) albeit
aggravated by the procedure itself. The paper cannot deal with this
wider context in detail, but notes its relevance.
The record of 100 years reveals substantial
activity by the Parliament in relation to alteration of the
Constitution. It has led to relatively little change, however, and
in that sense has been unproductive.. Since federation, 44 proposed
changes have been put to referendum and eight have been approved.
Two of these were minor.(12) Three others made limited
but useful alterations.(13) Only three can be seen, with
hindsight, to have been substantial.(14) In relation to
the Aborigines referendum, at least, its significance may not have
been foreseen either by the Parliament or by the voters at the
time.(15) While views inevitably differ on the merits of
the proposals that have not been approved, the referendum record
represents a failure, if only in its waste of money and time. Even
more seriously, the experience has created a defeatist national
attitude towards constitutional review and the possibility of
Many explanations are possible for the way in
which section 128 has worked in practice. Those relating directly
to the Parliament and to relations between the Parliament and the
people, at referendum, are explored towards the end of the paper.
This part suggests that the parliamentary system has not adapted
itself sufficiently to the demands of partnership in a
decision-making process that includes the referendum. The outcome
of a parliamentary vote usually can be predicted and in any event
is controlled by the respective parties. The dynamics of a
referendum are completely different. Proposals are easily
misrepresented, particularly when, as at present, the public is
reputed to know relatively little about the Constitution. A
referendum is a handy vehicle for a protest vote against the
government or politicians generally. Leadership from the Parliament
and a bipartisan approach are necessary but probably not sufficient
for a referendum to succeed. Constructive use of the referendum in
Australia is likely also to require the Parliament to respond
better to the views of voters on constitutional issues, using
improved mechanisms to explain the purpose and detail of proposals
being put to the vote.
Australia is not alone in confronting these
challenges. The referendum is now law or practice in many countries
for constitutional change(16) Governments throughout the
world are under pressure to give the public greater direct
participation in decision-making,(17) particularly in
the making and changing of constitutions.(18)
Technically, moreover, direct public participation is feasible. In
these circumstances, greater use of the referendum, in countries
around the world, is likely in the first part of the
21st century. Public and political understanding of how
and when referendums should be used gradually will increase as
well. Australia's long experience of the constitutional referendum
means that it has much to contribute to these issues. That same
experience, however, suggests that it also has much to learn.
Part 1: The Vision
The detail of the procedure for altering the
Australian Constitution was hammered out across the entire decade
of the 1890s. Alfred Deakin raised the issue at the 1890 conference
in Melbourne that initiated the later federation
movement.(19) The draft of the clause that became
section 128 was not finally settled until the Premiers' Conference
in 1899. Section 128 is one of the relatively few sections of the
Constitution to have been altered since federation by referendum,
with the right to vote being extended to electors of the
territories in 1977.
Debate on this part of the Constitution, as on
so many others, was influenced by two immediate preoccupations of
the delegates to the founding Conventions, preoccupations that
created divisions between them. One was the appropriate balance
between a national or truly 'federal' approach to decision-making
and the interests of the individual States. The other was the
potential for deadlocks between upper and lower Houses in a
bicameral Parliament, of which most delegates had had practical
experience in the Australian colonial Parliaments. In a sense, the
version of the Constitution alteration procedure that ultimately
prevailed represented a tactical victory for particular groups on
each of these two issues. The tenor of much of the debate would
justify claims that the outcome was progressive and innovative in
terms of contemporary experience and democratic theory, however.
There also were signs of the cynicism about the effectiveness of
representation that has since become more overt and that led in
part to the decision to adopt the referendum. Nevertheless, that
cynicism did not appear to cause the framers seriously to doubt
that the partnership between Parliament and people in this novel
form of decision-making ultimately would work out.
It was assumed from the start that, unlike the
position in Canada, the Australian Constitution would provide for
its own alteration.(20) In fact, the resolutions
introduced by Parkes to initiate debate on the Constitution in the
National Australasian Convention in 1891 did not provide for
alteration.(21) Subsequent debate, however, accepted
that the reason for the omission was to leave the decision about
the alteration mechanism in the relevant Convention
committee,(22) rather than to avoid an alteration
procedure altogether.(23) On that basis, Thynne withdrew
his motion for a new resolution
that a system be established for submitting
amendments of the Constitution for the approval of the electors of
the several states, and for prescribing the necessary
The Convention accepted a less contentious
resolution enabling each State to amend its Constitution to the
extent necessary to achieve federation.(25)
There was also general agreement that the
Australian Constitution would be entrenched through a special
alteration procedure, reflecting the significance of the 'bargain'
between the colonies to which the Constitution would give
effect.(26) There was no consensus, however, about what
that procedure should be. Despite Thynne's motion, the proposal the
Constitutional Committee brought back to the Convention in 1891
adopted the mechanism of elected Conventions, drawing on the
procedure for the adoption of the Constitution of the United
States, rather than the referendum. The recommendation of the
Committee would have required a proposed law to alter the
Constitution to be approved by elected Conventions in a majority of
States, after passage by an absolute majority in each House of the
Commonwealth Parliament.(27) The Convention adopted the
proposal, with one important qualification. The draft clause was
amended to require that the people of the States whose Conventions
approved an alteration must also be a majority of the people of the
Commonwealth.(28) The rationale was to mirror the
balance between national and State majorities, represented within
the Parliament by the House of Representatives and the Senate
The principle of conventions approving
alterations to the Constitution was secured in 1891 over the
dissent of a small but influential group of delegates who argued
strongly for the referendum.(30) The objection to
conventions, a mechanism that organised procedure exclusively
around States, was only partly assuaged by the changes made to the
Committee's recommendation. Deakin argued with force that, as
conventions could do no more than approve or reject a proposal the
Parliament had already passed, the question should be put directly
to voters.(31) Cockburn, with an eye principally to the
still unsettled issue of how the initial Constitution was to be
approved, characterised conventions in the United States as 'a
barrier against the popular will' that would never be accepted in
In the different circumstances in which the
Australasian Federal Convention met in 1897, supporters of the
referendum easily prevailed. The draft clause proposed to the
Adelaide session provided for approval by referendum. It retained
elements of the 1891 provision, to the extent that it required a
proposed law to be approved by electors in a majority of States as
long as the people of those States also were a majority of the
people of the Commonwealth.(33) The present requirement
for the views of the national majority to be ascertained directly
was substituted in the course of debate on the
clause.(34) Thereafter, the referendum remained a
constant feature of the procedure for alteration of the
Constitution. During the compulsory adjournment in 1897 the
Legislative Council of New South Wales proposed that alterations be
approved instead by a 2/3 vote in both Houses of the legislatures
of all the States. This proposal was negatived in Melbourne in
1898, without debate.(35)
Debate on the principle of the referendum arose
in other contexts, however. It was prompted in Adelaide by Deakin's
motion to remove the requirement for the Parliament to pass
Constitution alteration bills with absolute majorities, given that
'the question of reform is practically remitted to the
people'.(36) The motion was lost.(37) The
concept of the referendum was canvassed again in Melbourne, in
debate on whether it should be possible to submit to referendum
bills on which the two Houses were deadlocked. In both of these
debates, an underlying concern can be detected that the Senate
would unduly inhibit alteration of the Constitution by preventing
proposals from reaching the people.
Debate on the need for a provision to deal with
deadlocks over Constitution alteration bills was prompted by a
suggestion of the Legislative Assembly of Victoria that proposals
should be submitted to the people 'in the case of difference
between the two Houses'.(38) Delegates were divided at
least in part by their attitudes to the referendum and their views
about the ease with which a process of constitutional change should
be set in train. There was some by-play that suggests the influence
of other issues as well, however. Many of those espousing a
procedure for the resolution of deadlocks, in giving example of the
manner in which deadlocks might occur referred to a Senate in
favour of a particular change and a House against.(39)
By and large delegates from small States and upper Houses remained
sceptical, however.(40) After a passionate debate,
taking almost a whole day, the amendment was rejected
The issue was revived again by the Premiers'
Conference in 1899, after the deemed failure of the referendum on
the draft Constitution the year before. Amongst the changes adopted
by the Premiers to increase support for the Constitution in New
South Wales was the inclusion in section 128 of a procedure to deal
with deadlocks.(42) The new paragraph was modelled on
the deadlock procedure for ordinary bills, now in section 57 of the
Constitution, but compatible in principle with the motion rejected
in 1898. This drafting history helps to explain the differences
between this paragraph and the rest of
section 128.(43) It is possible that some or all of
the Premiers also foresaw that the involvement of the
Governor-General effectively would preclude use of the procedure
for bills passed by the Senate, but whether they did is
Many years later, one of the advocates of the
clause in 1898, H.B. Higgins, wrote to H.V. Dick:
I know that the thing which drew so many to vote
for the 1899 bill who had voted against the 1898 bill was the
striking change made by the Premiers in the amending power ... So
important was this change in our eyes, that I did not open a
campaign in Victoria against the 1899 bill ... [which] I foresaw
... would certainly be carried.(44)
One further aspect of the section was not
finally settled until 1899. From 1891 there had been concern to
protect the delicate compromise over the proportions of State
representation in the Commonwealth Parliament from alteration by
majorities of any kind, without the consent of an affected
State.(45) Out of caution, this special protection was
extended in 1891 to the minimum entitlement of each State to five
seats in the House of Representatives as well.(46) Both
qualifications on the general procedure for Constitution alteration
survived the substitution of the referendum for State conventions
in 1897. In 1899, in response to concerns about protection for
State boundaries in New South Wales, alterations to the limits of a
State 'or in any manner affecting the provisions of the
Constitution in relation thereto' were added to the list of matters
that required a majority in the affected State.(47)
The apparently uncharacteristic decision of
Australians, at the end of the 19th century, to adopt the
referendum for the purposes of constitutional change is readily
explicable in context.
In the first place, the drafting of the
Australian Constitution coincided with early use of the referendum
elsewhere in the world, and burgeoning debate on its use. Approval
at referendum had been required for alterations to the Constitution
of Switzerland since 1848.(48) The popular initiative
had been introduced for partial revision of the Swiss Constitution
in 1891. Delegates to the Australian Conventions were familiar with
the Swiss procedure(49)and, in general, favourably
inclined towards it.(50) They were aware of the trend
towards the adoption of the referendum in the American
States(51) and concerned about the difficulty of
amendment of the Constitution of the United States, where the
referendum was not in use. Even in the United Kingdom, bastion of
responsible government, a debate was under way on the merits of the
referendum, with A.V. Dicey urging consideration of the 'possible
expediency of introducing [it] into England' for constitutional
purposes,(52) and James Bryce advising
Some delegates also argued specifically for the
principle of the referendum, as the next logical step in the
evolution of democracy. Isaacs put the point most forcefully in
1898. He said that since the passage of the Reform Act 1832:
... there has been a gradual but a sure shifting
of power, from the Parliament to the people ... This is a tendency
which we cannot resist. Every day we see the right of the people to
be consulted upon their own affairs becoming more and more
acknowledged. Who will stand here or anywhere and deny that
There may be an echo here of contemporaneous
arguments in England, although these tended to centre on the effect
of party and faction on the ability of Parliament to make decisions
on the merits.(55)
In any event, the adoption of the referendum for
the purposes of ongoing constitutional change was a logical choice
for a Constitution that would be approved by referendum in the
first place. Even in 1891, there was some expectation that the
Constitution would be approved by popular vote,(56)
although clearly this was not shared by all.(57)
Thynne's advocacy of the referendum as a mechanism likely to excite
the enthusiasm of the people for the Constitution probably was
regarded as misplaced by those who assumed that the colonial
Parliaments would approve the draft.(58) Uncertainty on
this point aided the decision in 1891 that Constitution alteration
would require approval by State conventions. By 1897, however, the
need for the draft Constitution to be approved by the electors was
laid down in the enabling Acts of four of the five participating
colonies. Ultimately, a similar requirement was prescribed for
Queensland and Western Australia as well. After 1897 it was more
readily assumed that the referendum also should be used for ongoing
change although Glynn, a consistent critic, pointed out that this
did not necessarily follow.(59)
Nevertheless, there was significant opposition
to the mechanism of the referendum, both in 1891 and 1897-98. Some
of the criticisms were practical. Describing the referendum as
'full of trouble and difficulty',(60) Gillies asked in
1891, for example, whether proposals would be put separately or
combined in a single bill 'so that electors can say yes or no to
each?' In 1897, McMillan referred to the potential of the
referendum to 'dislocate the whole of the social and business life
of the community'' as a reason for insisting on the requirement of
an absolute majority in the Parliament before a proposal was
submitted to the people.(61) In the next year Howe,
another confirmed opponent, pointed to the probable expense of the
referendum in a 'wide continent like Australia'.(62)
For the most part, however, critics pointed to
two other, general issues, each of which is familiar today. The
first concerned the capacity of the voters to contribute to
decisions about the future of the Constitution by voting in a
referendum. One delegate expressed a fear that voters 'may be
swayed by a sudden gust of passion' to alter 'a Constitution which
may have been framed with great care'.(63) Another
expressed concern that voters would not be able to come to grips
with the detail of a proposal to change the Constitution, although
'if the question were to be simply a kingdom, or a republic, there
might be a plebiscite on that'.(64) Several delegates
suggested that the people as a whole would not understand proposals
for change,(65) and that in the absence of Convention
delegates, there would be nobody to enlighten them.(66)
Deakin suggested that Members of Parliament would do so. Baker was
If they do then, I say their nature will be
different from the nature of ordinary members of
The second general issue was the perceived
inconsistency of the referendum with two of the principal pillars
of the Constitution: representative government and responsible
government. There is an echo here of the more familiar concern of
the framers of the Constitution about the compatibility of
responsible government and federalism. The potential for conflict
between the referendum and representative government was obvious.
The representative principle involved the delegation of power by
the people 'to men selected by them as specialists'; the referendum
involved repudiation of 'the wisdom of centuries'.(68)
The objections to the referendum on grounds of responsible
government were more diffuse. In part they were rhetorical, a
convenient ground on which to distinguish Australia from
The issue was discussed at length in the debate
on deadlocks, however. The demands of responsible government were
invoked often in opposition to an arrangement that would allow a
referendum to be held following passage of a Constitution
alteration bill by only one House. If the Senate was the House that
passed the bill, the government would be obliged to submit the
proposal to referendum, despite its own opposition to
it.(70) Even where a bill was passed by the House and
rejected by the Senate, Barton envisaged the potential of the
referendum to 'eat away the foundations of responsible government'
by giving the government a means of appealing directly to the
people as a distraction from its difficulties in the
Parliament.(71) Delegates did not perceive so clearly
that the problem might be the reverse; that the influence of
responsible government on the initiation of referendums might
politicise the entire Constitution alteration process and make it
more difficult to use.
Despite the recent Swiss adoption of the popular
initiative, there was general agreement that the Constitution
should provide only for the passive referendum, leaving the
initiative with the Parliament. This meant that the referendum
would be a 'veto, nothing more'(72) or 'simply a
ratification'.(73) It would be for Members of Parliament
to deliberate on proposals for change, refining them and taking
responsibility for them.(74) Much of the debate on these
issues in both 1891 and 1897-8 was directed to ensuring that the
procedure for initiating proposals was sufficiently serious without
unduly restricting 'the very narrow road, by which it will be
possible for the electors to obtain an amendment of the
The framers of the Constitution wanted a
mechanism for Constitution alteration that would strike what they
considered to be the appropriate balance between protection of the
Constitution and flexibility to change it as need arose.
Inevitably, there were different views about what this
meant.(76) Nevertheless, delegates referred repeatedly
to the problem of the rigidity of the Constitution of the United
States, which they were anxious to avoid.(77) They
seemed to think that they had done so. Their principal reservations
about the mechanism they had chosen concerned the manner in which
proposals for change would be initiated, rather than the referendum
Glynn was an exception. Towards the end of the
debate on the issue in Melbourne, he moved to add an alternative
alteration procedure, involving passage by special majorities in
the Parliament in two successive sessions.(78) His
motion was negatived on the voices.
Part 2: Framework for the Referendum
Section 128 provides some constraints on the
referendum process. The electors must vote on the proposed law
itself. By contrast, in a plebiscite, voters may be presented with
a range of options and invited to indicate their order of
preference for them. The law must be put to referendum, if it is
put at all, within two to six months after its passage by both
Houses. Everyone who is qualified to vote for Members of the House
of Representatives is entitled to vote in a referendum. A
referendum is passed if majorities of those who vote approve the
proposed law. An informal vote therefore effectively is a no vote.
Otherwise, the section confers on the Parliament the responsibility
of prescribing the referendum procedure and of dealing with any
practical difficulties that arise.
Parliament exercised its power under section 128
for the first time in 1906. The Referendum (Constitution
Alteration) Act 1906(79) was passed in preparation
for the 1906 referendum.(80) It was replaced in 1984, by
the Referendum (Machinery Provisions) Act,(81)
as part of a major overhaul of the electoral legislation. The
approach of both Acts was to model referendum procedure as nearly
as possible on the familiar arrangements for the election of
Members of Parliament or the passage of ordinary legislation. The
referendum process begins with the issue of a writ by the
Governor-General(82) acting, as usual, on government
advice. A referendum must be held on a Saturday. There must not be
a State or territory election on that day, although there may be a
federal election.(83) Rules broadly comparable to those
for elections are provided for modes of voting, scrutiny and
disputed returns.(84) The Electoral Commission
administers the ballot. The question for voters on the ballot paper
refers to the long title of the proposed law.(85) In a
necessary departure from ordinary voting procedure, voters must
write 'yes' or 'no' in a space provided.(86)
This approach meant that, when compulsory voting
was adopted for Commonwealth elections in 1924, it was extended to
referendums as well.(87) Section 45 of the 1984 Act now
imposes a 'duty' on every elector 'to record his vote at a
referendum'. The change had no immediate effect on referendum
results. By 1924, only two out of 13 proposals had been approved at
referendum. The pattern that was to become the norm was well set,
and three out of the next 13 proposals were approved. The effect of
compulsory voting on the turnout for referendums was substantial,
however, as was to be expected. Before 1924, turnout ranged between
50.2 per cent in 1906 and 73.7 per cent for the five referendums on
Commonwealth powers in 1913. Since 1924, turnout consistently has
been more than 90 per cent, although often not above 95 per
cent.(88) There is an argument that compulsory voting is
less appropriate in referendums than in ordinary elections because
of the complexity of the issues and the degree of apparent voter
apathy.(89) After 75 years, however, compulsory voting
is well established. The voluntary vote for delegates to the 1998
Constitutional Convention may be one reason why the Convention
failed to give voters a sense of ownership of its
Some practical issues for referendum procedures,
anticipated in the 1890s and enlivened by subsequent experience,
are not resolved by legislation but are dealt with pragmatically,
case by case.
The first is the question whether and in what
circumstances proposed changes should be put to the voters in a
single referendum bill.(90) While in some cases
disparate proposals have been combined,(91) the
objections to the practice are obvious, and a uniform lack of
success does not encourage its indiscriminate use. An associated
question, less easy to answer, is whether more than one bill should
be put to referendum at the same time. It is sometimes argued that
multiple questions are confusing to electors, who cannot
discriminate between them. In practice, however, there have been
only five occasions on which a single question has been
put.(92) While two of the five proposals were approved,
the sample is too small and the examples too old to allow useful
conclusions to be drawn. Concern about multiple referendum
proposals may be reinforced by the similarity of the results on all
bills put to voters in this way in several
referendums.(93) Significant differences in results in
other cases, however, suggest that an influential proportion of the
electorate, at least, is well able to distinguish between different
proposals, if it chooses to do so.(94)
A second important procedural issue concerns the
timing of referendums and, in particular, whether they should be
held separately from, or in conjunction with, a federal election.
The answer is significant for cost, which is substantially greater
if a referendum is held alone. Writing during his term as Chief
Electoral Commissioner, Colin Hughes estimated, for example, that
the 1988 referendums would have cost $10 million rather than $34.4
million had they been held at the time of a general
election.(95) There is, of course, a danger that a
referendum held with a general election will become confused with
'personal issues, with political issues, with platform issues' as
Deakin feared in connection with the approval of the draft
Constitution.(96) The approval record of proposed laws
submitted to referendum with a general election(97) is
roughly the same as that for those submitted separately,
however.(98) And the increasingly partisan nature of
referendum campaigns, now generally conducted separately from
elections, raises a question whether obfuscation could be any
worse. Colin Hughes has speculated:
[While] a separate referendum might be less
contaminated by partisanship ... hostility to the extra public
expenditure and the likelihood of scare campaigns being heard in
the quieter environment could cancel that
Public understanding of referendum proposals and
the manner in which the public is informed about them have been
continuing practical problems which were anticipated by some of the
framers.(100) The requirement for a referendum to be
held within two to six months was included in the Constitution
partly for this purpose, lest 'the question ... be allowed to get
cold and the educative effect of the debates be
lost'.(101) Higgins supported an amendment to the
deadlock procedure to require one House to pass a proposed law
twice to ensure that 'the people ... have the advantage of a long
discussion before they commit themselves.' He continued: 'I want
them to have the advantage of what appears in the newspapers and of
what takes place in the Parliament, and on the
The problem anticipated by the framers has been
exacerbated since by several factors: the introduction of
compulsory voting, the disappearance of systematic civics education
from schools, the lack of information provided to immigrants about
the Constitution and system of government. Whatever the cause, the
result is notorious. Repeated inquiries have concluded that a
surprisingly large proportion of Australians are unfamiliar with
the fundamentals of the Constitution or, apparently, unaware that
it exists at all.(103) To the extent that these results
are accurate, they have significant implications for the referendum
process and for the nature of the information the electorate needs
before a referendum is held.
With a few minor variations, identified below,
the response to this problem has been much the same for the past 90
years. The proposed law itself is publicly
available.(104) The only other information made
accessible through official channels sets out the arguments in
favour of and against the proposed law, each limited to 2000 words.
This material is posted to electors by the Electoral Commission at
least 14 days before the referendum, with a statement of the
textual changes.(105) The arguments are prepared by
Members who voted respectively for and against the proposal in the
Parliament. If there is no opposition to a proposal in the
Parliament, as in the case of the Aborigines referendum in 1967,
there is no provision for distribution of arguments against it.
Distribution of the cases for and against is an extension of the
expectations of many of the framers that the debate in the
Parliament would be the principal vehicle for informing voters
about referendum proposals. The highly adversarial and tactical
nature of the cases, however, now raises a question about the
extent to which they fulfil their intended
The referendum legislation makes the usual
provision against deception or undue influence in connection with
referendums, including a prohibition against misleading or
deceptive publications.(107) Dismissal of a challenge
under this section during the 1999 referendum campaign points to
the difficulty of invoking such a section where competing
democratic values are at stake: in this case, the right of electors
to understand a referendum campaign and the right to freedom of
speech. The absence of an effective sanction against misleading
statements would be less significant if there were a source from
which reliable information could be sought.
There have been four distinct phases in the
provision by the Parliament of information about referendum
proposals in Australia:(108) 1901-1911; 1912-1983;
Three referendums were held during the first 11
years of federation, involving five propositions. Two were
approved. There was no additional provision for public funding of
information of any kind during this period. The referendums of 1906
and 1910 were held in conjunction with a general election and
information was provided in the normal course of those
The rejection of the referendum bills in 1911
was attributed to misunderstanding of the proposals. The government
moved to amend the referendum legislation to provide for the
distribution of information to voters, in the form of arguments for
and against referendum bills. According to Hughes, then
Attorney-General, the arguments would be 'appeals to the reason
rather than to the emotions and party sentiments'. Prime Minister
... no doubt at all that the case will be put
from both sides impersonally and free from any suggestion of bias
of misleading on the one side or the other.
He concluded with a rhetorical flourish:
Let it be a document that Parliament will be
proud of and from which Australia will benefit.(109)
With the support of the Opposition, led by
Deakin, the new requirement was inserted into the 1906 Act, as
section 6A. The 1911 proposals were put to referendum again, in
altered form, and rejected again, although on this occasion they
attracted greater support.(110).
The operation of section 6A was suspended for
the next three referendums, all of which were put by non-Labor
governments. In 1919, the referendum was held in conjunction with
an early election and it was argued that there was no time for the
cases to be prepared and distributed. In 1926, despite the
introduction of compulsory voting, the requirement was waived
again, in the face of substantial differences of opinion between
those supporting the proposals. In 1928, the referendum to
authorise the Financial Agreement was held in conjunction with a
general election and supported by both parties. Once more, the view
was taken that no additional information was needed. The arguments
were distributed again for the referendum of 1937, and there have
been no waivers since.
Increasing frustration with the results of
referendums and mounting criticism of the information provided
under section 6A ushered in the next phase in the provision of
public information. Five Constitution alteration bills passed the
Parliament in 1983.(111) The then Labor government
proposed to spend $1 million on a promotional campaign, in addition
to $5 million on the usual referendum pamphlet.(112) In
reaction, the Senate caused to be added to the referendum
legislation a prohibition against the expenditure of public money
other than as authorised by the Act.(113) The following
year, in debate on the Referendum (Machinery Provisions) Bill, the
government sought authority to fund promotion of both sides of the
case, in proportion to support for, and opposition to, the
referendum bill in the Parliament.(114) This attempt
also failed. An amendment of another kind by Senator Macklin was
successful,(115) however, and has potential
significance. Its effect was to authorise the expenditure of public
moneys on 'the provision by the Electoral Commission of other
information relating to, or relating to the effect of, the proposed
Controversy in the Parliament during debate on
the Macklin amendment may help to explain why the Commission so far
has not provided information of this kind.
The final phase in the evolution of current
Australian practice in relation to public information about
referendum proposals occurred in 1999, in connection with the
republican referendum. That referendum was unique. The proposal
emanated from a half-elected Constitutional Convention. Members of
the Commonwealth Parliament constituted a minority of the
Convention delegates. The Prime Minister was opposed to the
substance of the referendum. Many of the most powerful proponents
and opponents of the referendum were outside, rather than inside,
the Parliament. In these circumstances, section 11(4) was suspended
to allow public expenditure on additional programs. One was a plain
English public education program, to enable 'balanced, factual
information to be made widely available'.(117) The
second involved funding two external 'yes' and 'no' committees with
$7.5 million each.(118)
The second program was a response to the
particular circumstances of the 1999 referendum and is unlikely to
be repeated. The first has more general potential, although its
tentative nature in 1999 limited the impact it made. The role of
the independent committee appointed for the purposes of the
program(119) was confined to reviewing, often at short
notice, a text produced by the government. The priority of the
committee was to ensure that the two opposing sides would accept
the material as fair, making the needs of the public a secondary
consideration. The committee had no responsibility for the way in
which the text would be published or used, or for the preparation
of material for other media. The contrast with the relative
sophistication of the public information provided by New Zealand in
connection with its two plebiscites on the electoral system is
As expected by many of the framers of the
Constitution, the Australian Parliament has played a role in the
provision of information to the electors about referendum
proposals. In the early days, at least, its ideals were lofty, if
rhetoric is any guide. In practice, however, party politics and
partisan self-interest have dominated the process. There is little
focus on the needs of voters. And despite the revolution in
communication techniques over the course of the 20th century, the
legislative framework for the provision of public information
effectively has remained unchanged. The failure of the Parliament
to develop a more effective regime may reflect a view that
impartiality is impossible. This view has some merit, particularly
in the atmosphere of suspicion that typically characterises
Australian constitutional debate. Other countries have managed to
overcome such difficulties, however, through a combination of
goodwill, checks and balances and a commitment to the values of
public participation. There is no reason why Australia cannot do so
Initiation and Review
Under section 128, the responsibility of
initiating proposals to alter the Constitution is left to the
A proposal is initiated once a Constitution
alteration bill is passed by the two Houses, with absolute
majorities, or by one House twice, in accordance with the deadlock
procedure. Experience shows, however, that this is a necessary but
not sufficient prerequisite to submit a bill to referendum.
Constitution alteration bills are not put to the voters unless the
government of the day so decides. The requirement for the
Governor-General to act on advice in exercising the discretion to
submit referendum bills that have passed one House twice has been
assumed since 1914, effectively to nullify the Senate's power to
initiate referendums.(120) Echoing the predictions of
some of the framers of the Constitution, the Royal Commission on
the Constitution described this aspect of the operation of the
section as 'an instance of responsible government prevailing over a
federal principle in a Constitution which seeks to combine
them'.(121) Even where a Constitution alteration bill
has passed both Houses, a referendum will not necessarily follow,
as precedents from 1965 and 1983 show.(122)
Responsible government has wider ramifications
as well for the initiation of referendums under section 128. Some
Constitution alteration bills have been introduced as private
members bills.(123) Most proposals are introduced with
the support of the government, however, and are unlikely to be
passed, at least through the House of Representatives, without such
support. With the 1999 referendum on the republic as the sole-and
not encouraging-exception, all proposals submitted to referendum in
effect represent government policy. The dominance of the executive
government over the process for the initiation of alterations to
the Constitution has contributed to the partisan character of the
debate within the Parliament and during the referendum
The party political character of the initiation
process, in turn, plays a part in the high rate of referendum
failure. In recognition of this difficulty, a succession of
wide-ranging reviews of the Constitution has been established since
federation, essentially as a source of policy advice to government
about proposals for constitutional change that might have broader
support. Parliament has played a role in most of these, either as
active participant, as facilitator, or as both.
These reviews fall into three categories. The
first category, that of expert committees, comprises the Royal
Commission on the Constitution 1927-29 and the Constitutional
Commission 1986-88. Reviews in the second category have involved
Members of Parliament more actively. Again there are two: the Joint
Committee on the Constitution of the Commonwealth Parliament,
1956-59; and the Australian Constitutional Convention, 1973-85. The
hybrid character of the 1998 Constitutional Convention justifies a
third category. All five review bodies are examined below. In each
case, this paper considers the terms of reference of the body, its
establishment and process, its principal recommendations and its
outcome, in terms of proposals submitted to referendum and the
results. While the ostensible purpose of each review was to provide
a broader support base for proposals for change, each also was
subject to a degree of executive government control that
contributed to limited results.
Royal Commission on the Constitution
The Royal Commission was appointed on 18 August
1927 by the Governor-General, on the advice of the Bruce
government, under the Royal Commissions Act 1902-1912. Its terms of
reference required the Commission to report on:
the powers of the Commonwealth under the
Constitution and the working of the Constitution since
Ten subjects were drawn specifically to its
attention, including the currently contentious issue of 'industrial
powers'. Two of the seven commissioners were members of Parliament.
Ominously, neither represented the federal Opposition, which had
refused to participate.(124) The Commission took two
years to complete its report. Its evidence covered 7000 pages and
the report comprised 300 pages of 'detailed and exacting
The Royal Commission coincided with the end of
the first quarter century of Australian federation and with the
move to the new federal capital in Canberra. It had been preceded
by a string of referendum failures. The most recent had occurred in
1926. There had been talk since 1920 of a Constitutional Convention
to review the Constitution. A bill to establish a Convention had
been introduced into the Parliament but had lapsed after the second
reading stage.(126) Initially, the Bruce government had
proposed that a select committee of the Parliament review the
Constitution.(127) Negotiations with the Opposition
broke down, however, over the proportionate representation of the
parties on the committee(128) and the Commission was
Substantial divisions of view between the
commissioners complicated their recommendations and their final
report. In essence, these differences reflected different attitudes
to federalism as a system of government for Australia. A majority
supported continuation of the federal system, with some amendment.
A minority advocated eventual transition to a unitary system
through a procedure to enable alteration of the Constitution by an
Act passed by absolute majorities of both Houses of the
Commonwealth Parliament. Specific majority recommendations with
contemporary political significance included deletion from the
Constitution of Commonwealth power with respect to industrial
disputes and relaxation of the procedure for creating new States.
Other recommendations with continuing relevance over the decades
that followed were extension of the maximum term of the House of
Representatives to four years, imposition of a retiring age for
Justices of the High Court, conferral on the High Court of power to
give advisory opinions and power for the States to impose indirect
taxes that do not interfere with customs duties.
The Letters Patent appointing the Commission
required it to report 'with as little delay as possible'. In March
1928, Members of Parliament began asking in the Parliament when the
report would become available.(129) They continued to
ask, with little response, for the next 18 months. Eventually, the
report was received on 20 September, one week after the Parliament
had been dissolved for the general election. One issue in the
campaign was the Government's proposal to return authority over
industrial disputes to the States. Round Table commented that,
since the views of the majority of Commissioners on industrial
matters 'harmonised with those of Mr Bruce's policy speech, the
heat of political controversy generated an unjustifiable suspicion
that there was a certain timeliness in the appearance of the
In the event, Prime Minister Bruce lost both the
election and his own seat. Response to the Royal Commission's
report fell to the new Prime Minister, Scullin. He was hardly
likely, in the circumstances, to be sympathetic to the majority
view. A bill to implement the recommendation of the minority on the
procedure for alteration of the Constitution was introduced into
the Parliament, but failed at the second reading stage in the
Senate.(131) No other action was taken in direct
response to the report, although some of its recommendations
reappeared in later reviews.
The Constitutional Commission was established by
the Hawke Labor Government on 19 December 1985 to carry out a
'fundamental review' of the Constitution.(132) There
were six full commissioners during the life of the Commission, each
with legal training. The Commission was assisted by five advisory
committees, dealing respectively with the Australian judicial
system, the distribution of legislative powers, executive
government, individual and democratic rights, and trade and
national economic management. Between them, the advisory committees
had another 37 members, with a range of professional
backgrounds.(133) The terms of reference of the
Commission required it to consider whether the Constitution
adequately reflected 'Australia's status as an independent nation',
the economic structure of the federation, the division of powers
and democratic rights.(134) At the request of the
Attorney-General, the Commission presented a first report to the
Government on 27 April 1988, on specified matters.(135)
Its final report was presented on 30 June 1988.
While the Commission did not recommend a new
Constitution, its reports covered almost every aspect of the
existing one. The Commission provided a sixfold classification of
its own recommendations.(136)
- provisions that adequately serve their intended purpose,
- provisions that are outmoded or expended
- provisions that have not met the purpose they are intended to
serve (for example, in 1988, section 117)
- aspects of the Constitution that are out of step with the
economic, social and political needs of Australian life, or the
role Australia plays in international affairs (for example, the
absence of a federal power over defamation)
- alterations to the structures of government, suggested as
necessary by experience, and
- new provisions, to repair omissions and to improve the ease
with which the Constitution can be understood.
While there was dissent within the Commission on
some individual recommendations, for the most part the reports were
agreed to by all Commissioners.
The terms of reference of the Commission
emphasised to a greater degree than earlier reviews the importance
of public participation.(137) Both the Commission and
its advisory committees solicited submissions and held public
meetings around the country. Under the auspices of the Commission
there was a survey of levels of popular understanding , which
suggested that only 53.9 per cent of Australians knew that there
was a written Constitution and that amongst young people the levels
of knowledge were lower still.(138) The Commission
distributed free copies of the Constitution, organised translations
of some of its material into the principal ethnic and some
Aboriginal languages and used a variety of other means to
disseminate information to improve understanding about its work.
These measures were important as symbolic recognition of the need
to engage voters in the process of constitutional review. While
undoubtedly they had some practical impact as well, subsequent
events suggested that it was marginal and that more sophisticated
strategies are needed to encourage more active public
As with the Royal Commission, the circumstances
surrounding the establishment of the Commission were inauspicious.
The proposal to create a body of this kind was publicly announced
by Attorney-General Lionel Bowen in the closing stages of the 1985
session of the Australian Constitutional
Convention.(139) He urged delegates to accept that
people other than parliamentarians might have 'other knowledge,
other concepts and other qualities of leadership that might
encourage this nation to talk about a new Constitution for
Australia'.(140) His speech signalled the withdrawal of
the Commonwealth Government from the Constitutional Convention
process. His stand was opposed by non-labor delegates from the
Commonwealth and all State Parliaments and by some State Labor
delegates as well-those from Victoria, South Australia and
Tasmania. Despite Commonwealth Government opposition, a motion was
passed to continue the Convention, albeit in a modified
form.(141) The Australian Constitutional Convention
Council remained in existence until 1994, although crippled by the
withdrawal of the Commonwealth and some State delegations.
As a result, despite Bowen's endorsement of the
need for 'bipartisanship' in his Convention speech, the Commission
had the support neither of the non-Labor parties nor of most States
when it was established later that year. As far as the States were
concerned, the situation was exacerbated by the terms of reference
of the Commission and its advisory committees. These barely touched
on the questions of reform of fiscal federalism, on which there had
been a large degree of consensus at the Brisbane session of the
Convention. As original partners to the federal 'bargain' the
position of the States in an expert review of the Constitution is
awkward in any event. The Commission reported that 'only the
Tasmanian Government and the Queensland Government made
The divisions between governments and between
the parliamentary parties did not bode well for the referendum that
followed in 1988. The resentment generated by the circumstances of
the establishment of the Commission was further fuelled by signs
that the referendum questions were a somewhat cynical exercise on
the Government's part. The Commission reported that it had been
asked by the Attorney-General in January 1988 to provide the
Government with an early report on specified matters by the first
week in May. These matters included four-year terms for the House
of Representatives, constitutional recognition of local government,
and selected civil and democratic rights.(143) The
Commission's first report was submitted on 28 April. Four
Constitution alteration bills were introduced into the House on 10
May, dealing with parliamentary terms, fair elections, local
government, and rights and freedoms. They passed both Houses by 3
June. The Commission noted:
In some cases the Bills are similar in substance
and in form to what was recommended in the First Report. In other
cases they vary from what we recommended.(144)
The bills were put to referendum on 3 September,
against vigorous opposition from the non-Labor parties, and were
rejected by historically large majorities. The final report of the
Commission was delivered to the Government before the referendum
took place, but no subsequent action was taken in relation to
Review by Parliaments
Committees of the Commonwealth Parliament have
been used from to time to advise on specific constitutional
provisions and, occasionally, on the need for Constitution
alteration. In particular, committees of both the Senate and the
House(145) have recommended change to the provisions of
section 44, dealing with the qualifications of Members of
Parliament. So far no action has been taken. In addition to
targeted inquiries of this kind, the Commonwealth Parliament has
also participated directly in two general reviews of the
Constitution. These are the subject of this part of the paper.
Joint Committee on Constitutional Review
The Joint Committee was established on a motion
of Prime Minister Menzies on 24 May 1956.(146) The terms
of reference for the Committee required it to:
review such aspects of the working of the
Constitution as the committee considers it can most profitably
consider, and to make recommendations for such amendments of the
Constitution as the Committee thinks necessary in the light of
Eight Members of the House of Representatives
and four Senators were appointed to it. The Prime Minister and the
Leader of the Opposition were ex officio members who did not,
however, attend. The Prime Minister's motion was welcomed and
supported by Dr Evatt, then Leader of the Opposition. The
Committee presented its first report to the Parliament on 1 October
1958, before the Parliament was dissolved for the general election.
It presented its final report on 26 November 1959.
With the exception of substantial reservations
by Senator Wright, most of the recommendations of the Joint
Committee were unanimous. They fell into three categories. The
first dealt with the composition and function of the Parliament and
the relations between the Houses. Issues included the nexus,
numbers of Senators and Members, deadlocks, simultaneous elections,
electoral distribution and discrimination against the Aboriginal
people in section 127 of the Constitution. The second category
dealt with extensions to Commonwealth legislative powers, including
aviation, research, industrial relations, corporations, trade
practices and economic powers. These recommendations also sought
relaxation of section 92 of the Constitution for the marketing of
primary products. The third, miscellaneous category included a
companion recommendation about section 92 in relation to interstate
road transport. It also dealt with the creation of new States and
proposed a change to the Constitution alteration procedure itself,
to require majorities only in half, rather than in a majority, of
On the face of it, the circumstances in which
the Committee was established and the cross-party acceptance of the
recommendations within the Committee boded well. There were other
less auspicious signs, however. The Committee was established
following a general election in which the Government had increased
its majority in the House of Representatives but had failed to win
a majority in the new Senate, now elected on a basis of
proportional representation. The Governor-General's speech at the
opening of the new Parliament linked the proposal for the
establishment of the Committee to this issue.(147) By
the time the Committee delivered its final report, in 1959, another
election had taken place and the Government had a majority in both
the House of Representatives and the Senate. From the standpoint of
the Government at least, the immediate urgency for reform had
There were other portents as well. From the
start, there was State dissatisfaction with the establishment of
the Committee. After criticising the lack of State
involvement,(148) the New South Wales Parliament
established its own committee in June 1956, with the support of
both sides of politics.(149) That committee, when it
reported, called for repeal of the uniform income tax legislation,
a matter on which the Commonwealth Committee made no
recommendation. Other States also reacted negatively. Some State
Premiers and Opposition leaders did not respond to the Committee's
invitation to confer with it.(150) Premier Bolte of
Victoria announced in March 1959 that his Government would not
accept the changes proposed by the Committee.(151) In
the following year, the Liberal Premiers of South Australia and
Western Australia joined him in opposing the Committee's
Nor was the cross-party agreement in the
Committee representative of the rest of the Parliament. In his
commentary on the Committee's work, Sawer noted:
Balance of opinion in the Committee was probably
somewhat to the left of the average opinion of this Parliament,
Labor Party views included, and certainly a good deal to the left
of the average opinion of the Liberal and Country Party
organisations in the country as a whole.(153)
Hostile comment on the Committee was made in the
Senate as early as March 1957.(154) The opposition of
the non-Labor Senators was reported in October 1958, in response to
the Committee's first report.(155) During an Opposition
attempt to force debate on the report in 1961, one non-Labor
member, Drummond, suggested that he had been 'blocked from
speaking'.(156) And Garfield Barwick, who was appointed
as Attorney-General in the Menzies Government, on his election in
1958, clearly was not enamoured of the Committee's recommendations.
In response to an Opposition motion in 1961, he referred pointedly
to the lack of State involvement with the Committee(157)
and suggested that the newly established Standing Committee of
Attorneys-General would be a preferable mechanism for securing the
desired uniformity of company law.(158) By 1962, he was
openly critical of the Committee's approach, saying that the
Committee should have presented priorities to the
Despite repeated attempts to raise the matter in
the Parliament, on the part of the Opposition over a period of five
years, there was no formal Government response to the Committee's
report. Finally, in 1965, now frustrated by the constitutional
nexus between the number of Members in the House of Representatives
and the Senate, Prime Minister Menzies announced that he had two
Constitution alteration proposals in mind: on Aborigines and on the
nexus.(160) The bills were passed by the Parliament but
not submitted to referendum on that occasion. They were passed in
altered form in 1967 and a referendum vote was held. The Aborigines
referendum was approved, with very high majorities, but the nexus
proposal was defeated. There was no other direct outcome of the
Committee's recommendations, although some of its recommendations
were taken up in subsequent reviews.
Australian Constitutional Convention
The Australian Constitutional Convention (ACC)
comprised delegations of members from the Commonwealth and all
State Parliaments, territory Assemblies and local government
representatives. The Commonwealth delegation had 16 members and the
States had 12 each. Delegations were representative of the parties
in the Parliament and of both upper and lower Houses. Each
delegation was appointed by a resolution of the Houses from which
it was drawn.(161)
The ACC was a Victorian initiative, supported by
both sides of politics.(162) A Labor Member of the
Legislative Council, Jack Galbally, first suggested a Convention in
1969. R.J. Hamer, later Premier of Victoria and leader of the early
Victorian delegations, took up the suggestion in the following
year. The immediate interest of both of them was the familiar State
preoccupation with fiscal federalism.
The framework for the ACC was negotiated by the
Attorneys-General of the participating jurisdictions, initially in
the Standing Committee of the Attorneys-General and then as the
Convention's Steering Committee. The terms of reference of the
Convention were set out in a motion moved by Prime Minister Whitlam
and seconded by Premier Hamer at the opening of the first plenary
session, on 3 September 1973.(163) The work of the ACC
was carried out through a series of Standing Committees and plenary
sessions. Six such sessions were held between 1973 and 1985, in
1973, 1975, 1976, 1978, 1983 and 1985. The resolutions of all
sessions now are collated in the Guide to the
The strength of the ACC lay in its potential to
develop necessary consensus on proposals for alteration of the
Constitution, across all political groups with representation in
Australian Parliaments. It involved the non-government parties as
equal partners,(165) thereby avoiding the difficulties
that had emerged in connection with the Royal Commission and that
later would affect the work of the Constitutional Commission.
Involvement of the States overcame one of the principal
difficulties of the Joint Committee.
On the other hand, there were signs that, in the
eyes of the Commonwealth Government and Parliament, these strengths
were weaknesses as well. State delegates were numerically superior
in the Convention, despite the four additional members allocated to
the Commonwealth. The outcome on important issues was unpredictable
and required negotiation that was difficult and often frustrating.
There were two particular indications of a lack of Commonwealth
commitment to the ACC process. One was the number of proposals for
change that were put to referendum during the early years of the
ACC but did not emanate from it.(166) These complicated
the task of developing a culture of co-operation within the
Convention and added to the record of referendum failure. The
second was some reluctance by the Commonwealth to put ACC
recommendations to the vote. Over the 12 active years of the ACC,
only five such recommendations were put to referendum, three of
which were successful.(167) In 1983, five other
Constitution alteration bills, which drew broadly on ACC
recommendations, passed the initiation stage. In the event,
however, they were not submitted to the people.(168)
The approval of three proposals in 1977 was
evidence that the processes of the ACC could lead to alteration of
the Constitution in ways that were useful, if not exciting.
Ultimately, however, the ACC proved too vulnerable to party
political manoeuvres. A successful 1976 session, during which both
sides of politics showed remarkable goodwill in the aftermath of
the constitutional events of 1975, overcame much of the damage of a
non-Labor boycott of the October 1975 session in Melbourne. But a
rowdy Adelaide session in 1983, during the height of the dispute
over Commonwealth policy towards the Gordon below Franklin dam,
assisted to prejudice the newly elected Hawke Government against
the ACC and contributed to its withdrawal in 1985. The fracas over
the funding of referendum campaigns that followed shortly after,
which resulted in the decision not to put to referendum five bills
that would have implemented ACC recommendations, soured relations
further still. A final straw was the opposition of the non-Labor
parties to the referendum on interchange of powers in 1984, which
had been endorsed by the ACC in successive sessions, with the
support of both sides of politics. The referendum failed, with
consequences that are still being felt, in the reluctance of States
to refer to the Commonwealth powers in relation to, for example,
Corporations Law. The 1985 session of the ACC agreed to a range of
measures to try to overcome the practical difficulties with its
operation and to ensure that the Convention worked more effectively
in future.(169) From the standpoint of the Commonwealth
Government, however, it was too late.
The experience of the ACC raised some
interesting questions about how a body comprising delegations of
parliamentarians can and should operate. One was the extent to
which such delegations can operate cohesively, given party
divisions within them, in the interests of a constitutional
process. While realpolitik eventually prevailed, some delegations
displayed a remarkable commitment to the ACC during its active
life, transcending party politics in difficult
times.(170) A second question concerned the composition
of delegations. The rationale for the ACC was to achieve a broad
consensus on proposals for constitutional change. For this purpose,
it was desirable for delegations to reflect a wide range of views
as effectively as possible. It was obvious that motions passed
narrowly were unlikely to succeed at referendum. From the outset,
the principle that Government and Opposition should be equally
represented in delegations was accepted. Towards the end, however,
some jurisdictions adjusted their delegations to reflect the
balance in their respective Parliaments. While this was
insignificant for the purposes of substantive motions, it enabled
obstructive procedural motions to be carried and contributed to the
gradual deterioration of goodwill.
The effects of the ACC were not confined to
constitutional change, but influenced some practical aspects of the
Commonwealth Constitution and some changes to State
Constitutions.(171) With the establishment of the
Constitutional Commission, the ACC ceased to be an active force.
The Constitutional Commission drew on some of the ACC's
recommendations, however, apparently treating them as further
Constitutional Convention 1998
A Constitutional Convention was held in February
1998, over a two-week period, to consider questions connected with
the proposed republic. The issues for the Convention, as specified
by the Prime Minister, were:
- whether or not Australia should become a republic
- the republican model that should be put to the electorate to
consider against the status quo, and
- the time-frame and circumstances in which change might be
Half of the 152 delegates were elected, each
State being a single electorate. The total number of elected
delegates was divided between the States in proportion to the total
representation of each State in the Commonwealth Parliament. Voting
was optional, and by post. The other half of the Convention
delegates were appointed. Twenty of these came from the
Commonwealth Parliament and 20 from the State Parliaments and
By 1998, the idea of an elected Convention was
familiar in Australia. The original Constitution was drafted in two
Conventions. The second of these consisted largely of elected
delegates, a feature that was credited with attracting greater
public interest in the process. The Convention of 1891 resolved
that the new Constitution should provide for State based elected
Conventions to approve alterations of the Constitution. This
proposal was abandoned in 1897, in favour of the referendum.
Speculation about the use of Conventions continued after
federation, however, albeit as a mechanism for initiating rather
than approving proposals for change.(174) An elected
Convention was proposed in 1919, as a mechanism for examining the
scope of Commonwealth powers, although ultimately the proposal did
not proceed.(175) As the limitations of the
parliamentary Convention model came to be recognised in the early
1980s, a bipartisan team of Gareth Evans, Haddon Storey and John
McMillan proposed an alternative Convention model involving a
minority of non-parliamentary delegates.(176) In 1993,
the non-partisan Constitutional Centenary Foundation released a
discussion paper drawing attention to the questions that would need
to be resolved if, as was likely, the approaching centenary of the
Convention of 1897-98 prompted another Convention to be
In the event, the idea of a partly elected
Convention was taken up by the then federal Opposition, as a
vehicle for making decisions about the proposed Australian
republic.(178) The Convention would be an alterative to
the Keating Government's preferred model of a plebiscite to
ascertain public views on the principle of a republic, leaving the
Parliament to develop the detail of the proposal for submission to
referendum. Following the defeat of the Keating Government in the
1996 election, the incoming Howard Government reaffirmed its
earlier commitment to a Convention.
The principal advantage of an elected Convention
lay in its potential to attract public interest and to involve the
voters to a degree in the development of a proposal before it
reached the referendum stage. It also appeared to offer an
opportunity to bypass or neutralise the party political division
over constitutional issues in the Parliament, on which previous
debates about the Constitution had foundered. But there were
difficulties with the Convention as well. One concerned its
relationship with the Parliament. This had been less of an issue in
the 1890s, when there was no single, national Parliament to take
the responsibility for constitutional change. The Constitution had
established the Commonwealth Parliament, however, and given it the
authority to initiate referendum proposals. There were questions
about how this authority could be reconciled with proposals for
change emanating from a Convention. This had been an issue even in
relation to the ACC comprising delegations of parliamentarians. The
inability of the ACC to contribute to the drafting of referendum or
to influence the substance of the arguments that were distributed
for and against its own proposals was an irritant. The greater
democratic legitimacy of an elected or even partly elected
Convention, however, highlighted the difficulty further.
These issues were resolved in relation to the
1998 Convention only on an ad hoc basis. The appointment as
delegates of Members of the Commonwealth Parliament helped to build
a bridge between the deliberations of the Convention and the
ultimate responsibility of the Parliament to initiate proposals for
constitutional change. The Parliament enacted enabling legislation
for the Convention. The Constitutional Convention (Election)
Act 1997 dealt largely with electoral matters, however, as its
name implies. It did not attempt to prescribe a plan of action, as
had the enabling Acts in the 1890s. On the last day of the
Convention, the Prime Minister announced his decision that a
particular model had attracted sufficient support to justify its
submission to referendum. The criteria on the basis of which this
decision was made were contested, however.(179) The
Convention's communique was expressed in principle only and its
model was not complete. The resolutions were translated into legal
form and augmented to the extent necessary by the Government,
without formal Convention involvement. The drafters adhered
faithfully to the Convention's model, even where it was
infelicitous. A Joint Select Committee of the
Parliament(180) deliberated on details of the bill and
caused some changes to be made without, however, interfering with
its central tenets. In due course, both Houses passed the Bill,
with absolute majorities. Members of Parliament prepared the cases
for and against, in the usual way. The result tended to confirm
existing doubts about the usefulness of this form of information in
helping the public to understand the meaning of referendum
A second difficulty concerned the nature of the
representation that could be expected from a Convention charged
with negotiating a specific proposal of this kind. Playford had
anticipated the problem in 1891, when he said:
... in this mode of convention you can never
ascertain correctly the views of the people. You only ascertain the
views of the men who have been elected members of the
The problem manifested itself clearly in 1998.
Even where delegates stood on broad platforms, they needed room to
manoeuvre in order to reach an agreed outcome. Other features of
the Convention exacerbated the disjunction between voters and
delegates as well. Only one half of the Convention was elected.
Voting was voluntary rather than compulsory, and less than 50 per
cent of enrolled voters participated.(182) Events moved
quickly, from the passage of the enabling Act(183) to
the election of delegates and thereafter to the meeting of the
Convention itself.(184) In these circumstances, it was
difficult for voters to comprehend either the nature of the process
or the substance of the issues. The effect of the agenda,
prescribed for the Convention in advance,(185) was to
preclude serious consideration of the direct election model,
already known to be favoured by the public at large. Delegates who
were not connected with either of the two major groups-the
Australian Republican Movement and Australians for a Constitutional
Monarchy-effectively were excluded from the planning
process.(186) The focus of much of the attention in the
Convention was on developing a model sufficiently acceptable to
Members of Parliament to ensure that it would be put to referendum,
rather than on whether it was likely to succeed at that stage.
There was no break in the Convention proceedings to gauge public
and other reactions, as had been prescribed by the enabling Acts
for the Convention of 1897-98.
Nevertheless, at the time, the Convention was
deemed a great success. While the model it produced was novel and,
in some respects, imperfect it was a genuine compromise, as all
Constitutions must be. During the two weeks of its meeting, the
Convention attracted great public interest and attention as
delegates listened to proceedings, attended sessions at Old
Parliament House, read newspaper reports and laughed at cartoons.
It seemed a symbolic and intensely Australian moment. When the
referendum eventually was held, however, on 6 November 1999, it was
rejected in all States and by a national majority. Opinion polls
suggested that the cause was not the principle of a republic,
apparently favoured by almost 80 per cent of voters, but the
particular republican model being proposed. If that is correct, the
Convention failed in one of two ways. Either it developed an
unacceptable model, or it developed the model in a way that did not
give the public a sense of ownership and did not enable them to
These events leave Australia with the
outstanding question about whether the Convention mechanism is
appropriate for the development of proposals for constitutional
change. Lessons can be learnt from the experience of 1998 and some
of the flaws of the process eliminated for another occasion.
Problems associated with the nature of a Convention and the
effectiveness of representation in it are more difficult to
eradicate entirely, however. In the wake of the referendum failure,
there was a tendency to assume that the earlier proposal for a
plebiscite would have been better after all, modified to enable
some consideration of options, after the manner of the New Zealand
Part 4: Hindsight
There were divisions between the framers of the
Australian Constitution about the Constitution alteration
procedure, as there were on most significant issues. The view that
ultimately prevailed was, by the standards of the times,
progressive and idealistic. Consistently with what was assumed to
be the trend of democratic development, it gave the electors a
voice in decisions about constitutional change. The voice was
essentially passive: to approve or reject. Sole authority to
initiate proposals for change was conferred on the Parliament.
Despite strategic manoeuvring by supporters of the House of
Representatives and the Senate respectively, and an occasional
expression of concern that the path of initiation was unduly
narrow, in general the framers accepted that the Parliament was
best suited to this role. In general also, they assumed that
deliberations in the Parliament would be an effective means of
informing voters about what proposals meant.
The framers had different expectations of the
extent to which a Constitution alteration procedure might need to
be used. But they all assumed, explicitly or implicitly, that
change would be needed at some stage. They wanted the mechanism to
reflect the views of Australians organised both nationally and by
States. They expected the mechanism that they chose to be
relatively difficult. Nevertheless, they wanted and expected it to
lead to change more readily than had proved possible in relation to
the Constitution of the United States.
Their expectations have not been met, in several
respects. The first and most obvious is the proportion of proposals
rejected at referendum. Both the proportion and the level of
opposition to individual proposals are increasing. In the absence
of other explanation, this suggests a substantial and widening gap
between the views of Members of the Commonwealth Parliament and the
voters on constitutional questions. In a system of representative
government, the existence of such a gap merits inquiry and
appropriate remedial action.
One possible, partial explanation for the
referendum record is the level of public understanding of proposals
that are put. Opinion is divided about the nature and significance
of this phenomenon. There is an argument that Australians have a
certain innate level of understanding of constitutional principles,
whatever their knowledge of the Constitution itself may be. Whether
that view is correct or not, however, principles become technical
when translated into constitutional terms, and technical detail can
easily be misrepresented and misunderstood. In this respect also,
the expectations of the framers have not materialised. Parliament
has not proved an effective mechanism for helping voters to
understand proposals for change that Parliament itself, at least
formally, has initiated. The current procedure has been in place
for the last 90 years and does not aid public understanding,
whatever other function it may perform.
Governments and Parliaments are well aware of
the escalation in the degree of difficulty of changing the
Constitution. Bipartisanship generally is assumed to be the answer
and ostensibly has been sought through a variety of different
means. On average, there has been one comprehensive review of the
Australian Constitution every 25 years since federation. Each has
identified a large number of proposals for change. Each also has
been largely ineffective in securing sufficient consensus on
change, within either Parliament or the electorate. Very little has
followed from any of them, as a result.
One possible explanation for this peculiarly
Australian experience lies in the practical challenge of
reconciling the referendum with two more pervasive features of the
Australian constitutional system: representative government and
responsible government. Responsible government has caused the
initiation process to be narrowed further still, by effectively
excluding the possibility that referendums might emanate from the
Senate alone. Habits of mind encouraged by responsible government
may lie behind the manipulation of every attempt at constitutional
review by the Government of the day and, in most cases, its
disruption by the Opposition. The adversarial style of politics
that tends to accompany responsible government has left its mark on
constitutional debate as well, ranging parties and jurisdictions
against each other on issues over which agreement and consensus
logically are possible. Familiarity with decision-making through
the parliamentary process may have obscured the need for
representatives to develop techniques to explain to voters the
substance of one special category of laws: those to alter the
These tensions between the referendum and other
principles of government were foreshadowed by some of the framers
of the Constitution, although not in detail. Some of the framers
would have abandoned the referendum altogether, in favour of other
procedures. This has been suggested since federation as well, most
notably by a minority report of the Royal Commission on the
Constitution. It is no longer an available option, even if it were
desirable. There is no realistic prospect of removing the
referendum requirement from the Constitution. If anything, the
trend towards its greater use, which some delegates perceived, is
becoming more of a reality as the world moves into a new
century.(187) If the constitutional referendum is here
to stay, with the Parliament as the sole avenue for initiating
change, clearly it is important that the two work effectively
Part of the answer may lie with the Parliament
itself. If its Members wanted to do so, Parliament could develop a
more bipartisan, more inclusive approach to matters such as the
Constitution that require a longer-term view. A joint standing
committee charged with making a regular report on the Constitution
in accordance with agreed terms of reference might be one mechanism
for this purpose. Agreement on proposals for change that were not
issues between the parties would enable them to be put to
referendum with elections. Cost would be less of a factor, even if
a proposal were rejected. Similarly, if it wanted to do so,
Parliament could develop more effective means of informing the
public about referendum proposals. The cases for and against might
be co-ordinated with each other and made less strident. An
independent body might be authorised to design and execute an
information program, with a right of challenge to another body if
the program was perceived not to be fair. Finally, if it wished to
do so, the Parliament could involve a wider group or the people in
the development of particular proposals, drawing upon the now
well-stocked Australian tool-box of procedures for constitutional
The Australian Constitution will continue to
change whether the formal alteration process is invoked
successfully or not. The nature and extent of this process can be
gauged by the present irrelevance of many of the proposals that
have been rejected at referendum and some of the recommendations of
bodies of review. In some cases this is because the proposals
themselves are now outmoded.(188) In many others,
however, it is because the objects of the proposals have been met
in other ways: through judicial decision,(189)
inter-governmental co-operation,(190) or other changes
in government practice. This is not intended to suggest that all
these early proposals were unnecessary; the course of Australian
history may have been different had particular referendums been
approved at the time. The point is made to illustrate that there
are alternatives to formal constitutional change.
Sometimes evolution is preferable to formal
change. There is no case for no change, however. There are limits
to what can and should be achieved through either judicial review
or political practice. Practical limits lie in the text of the
Constitution. Normative limits are imposed by considerations of
democracy, Australian-style. It cannot be assumed that national
life must adapt itself to the same constitutional provisions for
all time. The challenge for the next century is to find ways of
enabling the Parliament and the electorate to work in a more
productive partnership to achieve constitutional change, when it is
appropriate to do so.
- Literally, the procedure applies only to 'This Constitution'
and not to the rest of the Commonwealth of Australia Constitution
Act (UK), of which the Constitution is still part.
- Constitution Alteration (Referendums) 1977. The territories to
which the section refers are those allowed representation in the
House of Representatives.
- '... the proposed law shall be submitted ... to the
- '... the Governor-General may submit the proposed law
... to the electors ...'.
- For example, section 64: 'The Governor-General may appoint
officers to administer ... departments of State ...'. See also
- There is some controversy about whether the reference to
affecting the provisions of the Constitution refers only to
provisions dealing with State limits or to those dealing with State
representation as well. While the contemporary commentators Quick
and Garran, who ought to know, take the broader view, both history
and logic appear to support the narrower interpretation here: J.
Quick and R. R. Garran, Annotated Constitution of the
Australian Commonwealth, (1901, Legal Books repr. 1976), p.
- Section 30.
- See, for example, Alfred Deakin: '... the double voting power
in that colony and in any which follow its example would be
certainly unfair to the remaining States'. Australasian Federal
Convention, Adelaide, 1897, Debates, p. 1025. (hereafter,
- Section 4.
- 'When a proposed law is submitted to the electors the vote
shall be taken in such manner as the Parliament prescribes'.
- Scott Bennett and Sean Brennan, 'Constitutional Referenda in
Australia', Department of the Parliamentary Library, Research
Paper no. 2, 1999-2000, pp. 20, 21.
- Senate Elections (1906); State Debts (1910).
- Casual Vacancies, Referendums and Retirement of Judges, all in
- State Debts (1928); Social Services (1946); Aborigines (1967).
- John Chesterman and Brian Galligan, Citizens Without
Rights, Cambridge University Press, 1997, p. 186.
- David Butler and Austin Ranney, eds, Referendums around the
World, American Enterprise Institute, Washington, 1994, p. ix.
- David Butler and Austin Ranney, ''Practice' in Butler and
Ranney, eds, op. cit., pp. 1, 5, Table 1-1.
- See, for example, the 'Principles of Constitution-Making' in
the Commonwealth Human Rights Initiative, Recommendations to
Commonwealth Heads of Government, Promoting a Culture of
Constitutionalism and Democracy in Commonwealth Africa, 1999.
- Australasian Federation Conference, 1890, Record of
Proceedings and Debates, Melbourne, p. 55. (hereafter,
Melbourne Conference 1890).
- Deakin, Melbourne Conference, 1890, p. 123.
- National Australasian Convention, Sydney, 1891,
Debates, p. 23 (hereafter, Sydney, 1891).
- Committee on Constitutional Machinery, Functions and Powers.
The members were Parkes, Barton, Gillies, Deakin, Griffith, Thynne,
Playford, Downer, Clark, Douglas, Grey, Russell, Forrest and
Lee-Steere; Sydney, 1891, pp. 509-510.
- Cockburn, 'They omitted to make such a provision in the
Canadian act', Playford, 'They made a mistake there; but we are not
likely to do so', Sydney, 1891, p. 497.
- ibid., p. 495.
- ibid., pp. 499-500.
- Gillies, ibid., p. 884.
- ibid., p. 897.
- ibid., pp. 887-891.
- Bray, Cockburn, Deakin, Dibbs, Grey, Kingston, Playford, Smith
and Suttor; ibid., p. 897.
- ibid., p. 895.
- ibid., pp. 892-3, 'I am inclined to think that, just as they
will insist on this right in the establishment of the constitution,
so they will in regard to any alteration of the constitution'.
- Adelaide, 1897, p. 1020.
- ibid., p. 1027.
- Australasian Federal Convention, Melbourne, p. 1898,
Debates, p. 766, (hereafter Melbourne, 1898).
- Adelaide, 1897, p. 1021.
- ibid., p. 1023. A proposed amendment by the Legislative
Assembly of Victoria, to similar effect, was negatived at the
Melbourne session, Melbourne, 1898, p. 716.
- Reid at 736, Higgins at 740, Cockburn at 742, Kingston at 748.
- Forrest, 'Oh, you have that in your mind, do you?', Kingston,
'I have both positions in my mind ...', ibid., p. 748.
- ibid. p. 765. Those in favour of a deadlock provision were
Berry, Cockburn, Deakin, Gordon, Higgins, Holder, Isaacs, Kingston,
Lyne, Peacock, Quick, Reid, Trenwith and Turner.
- Quick and Garran, op. cit., p. 220.
- Above, text associated with fn. 4.
- Letter dated 4 December 1928, copy in the possession of the
- Sydney, 1891, p. 884.
- ibid., p. 898. The five seat minimum is prescribed in section
- Quick and Garran, op. cit., p. 220.
- Kris W. Kobach, 'Switzerland' in Butler and Ranney, op. cit.,
pp. 98, 101.
- Sydney, 1891, p. 885 (Munro), p. 891 (Playford). See also
Melbourne, 1898, pp. 740-1, where Higgins cites sections of the
Swiss Constitution from 'the book which the Attorney-General of
Victoria (Isaacs) has handed to me'.
- For example, Sydney, 1891, p. 888 (Playford). But see
Melbourne, 1898, p. 755 (Howe).
- Melbourne Conference 1890, p. 121 (Deakin). On the use of the
referendum in the US see David Magleby, 'Direct Legislation in the
American States' in Butler and Ranney,
op. cit., pp. 218, 219.
- A. V. Dicey, 'Ought the Referendum to be introduced into
England?' The Contemporary Review, 1890, pp. 489, 511.
- Edward A. Freeman, 'The Referendum' The Universal
Review, 1890, p. 331.
- Melbourne, 1898, pp. 758-9.
- Dicey, op. cit., p. 511; Freeman, quoting Bryce, op. cit., p.
- Sydney, 1891, p. 495 (Thynne), p. 893 (Cockburn).
- ibid., Cockburn: 'I should like to know if any Hon. Member of
the Convention holds a different opinion?'. Gillies: 'Certainly,
dozens do!'. Griffith: 'I do, for one; I think it is absolutely
impossible!'. Cockburn: 'I am surprised ...'.
- Sydney, 1891, p. 495. Gillies observation that 'You will never
carry a Constitution with that proposal in it' may have assumed
parliamentary ratification: at p. 892.
- Melbourne, 1898, p. 738.
- Sydney, 1891, p. 498.
- Adelaide, 1897, p. 1022.
- Melbourne, 1898, p. 755.
- Sydney, 1891, p. 497 (Russell).
- ibid., p. 894 (Griffith).
- Melbourne, 1898, p. 746 (Dobson).
- Sydney, 1891, p. 896.
- Melbourne, 1898, p. 738 (Glynn).
- ibid., p. 725 (Wise, Downer).
- ibid., p. 764 (Wise). This difficulty has not eventuated, under
the procedure added to the Constitution by the Premiers.
- ibid., pp. 750-752.
- ibid., pp. 724, 727 (Downer).
- ibid., p. 758 (Isaacs).
- Adelaide, 1897, p. 1022 (McMillan), Melbourne, 1898, p. 741
- ibid., p. 727 (Deakin).
- Compare Braddon, Adelaide, 1897, p. 1021 with Isaacs,
Melbourne, 1898, p. 723.
- Adelaide, 1897, pp. 1021-2 (Isaacs), Melbourne, 1898, pp.
719-20 (Isaacs), p. 737 (Glynn), p. 750 (Barton).
- ibid., p. 771.
- Hereafter the 1906 Act.
- Senate elections.
- Hereafter the 1984 Act.
- 1906 Act section 5, 1984 Act section 7.
- 1984 Act sections 143, 23.
- 1984 Act parts III, IV, V, VI, VIII.
- 1906 Act section 14A, 1984 Act section 25.
- 1984 Act section 24.
- Commonwealth Electoral Act 1918 section 128A.
- Colin Hughes, 'Australia and New Zealand' in Butler and Ranney,
op. cit., pp. 154, 155.
- F. Crisp, Australian National Government, (Longmans
5th edn., 1983), p. 51.
- Sydney, 1891, p. 498.
- 1911, 1919, 1926, 1946, arguably 1988.
- 1906, 1928, 1944, 1948, 1951.
- 1974, 1988.
- 1937, 1946, 1967, 1977 (simultaneous elections), 1999.
- Hughes, op. cit., p. 161.
- Melbourne Conference 1890, p. 121.
- 1906, 1910, 1913, 1919, 1928, 1946, 1973, 1974.
- Four of the 21 submitted at the time of a general election have
been approved, as against four of the 23 submitted separately.
- Colin Hughes, op. cit., p. 161.
- Sydney, 1891, p. 894 (Griffith), p. 896 (Baker and Deakin),
Melbourne, 1898, p. 747 (Dobson).
- Adelaide, 1897, p. 1023 (Cockburn).
- Melbourne, 1898, p. 741.
- Civics Expert Group, Report, AGPS, Canberra, 1994, pp.
80-106. For a discussion of the meaning of these findings, see
Australian Quarterly, 1995, vol. 67, no. 3.
- 1984 Act sections 8, 11, 14.
- 1906 Act section 6A, 1984 Act section 11.
- For a summary of each of the cases that has been used, see
House of Representatives Standing Committee on Legal and
Constitutional Affairs Constitutional Change, February
1997, pp. 62-114. (hereafter Constitutional Change).
Some of the issues were canvassed before and during the Brisbane
session of the Australian Constitutional Convention, Official
Record of Debates 1985, vol. 1, xci, pp. 288, 424.
- 1906 Act section 48, 1984 Act section 122.
- The information below is taken principally from two sources:
Lynette Lenaz-Hoare, 'The History of the "Yes/No" case in Federal
Referendums and a Suggestion for the Future' and Cheryl Saunders,
'Referendum Procedures' in Australian Constitutional Convention,
Proceedings, Brisbane, 1985, vol. II, Constitutional
Amendment Sub-Committee Report, pp. 85, 111.
- Lenaz-Hoare, op. cit., pp. 87-88.
- Bennett and Brennan, op. cit., p. 5.
- ibid., 11, fn.20. The bills dealt with advisory opinions,
interchange of powers, simultaneous elections, four-year terms and
outmoded and expended provisions.
- Commonwealth Parliamentary Debates, Senate, 7 June 1984, p.
- 1906 Act section 6A(4), 1984 Act section 11(4).
- Commonwealth Parliamentary Debates, Senate, 7 June 1984, 2731
- ibid., p. 2762.
- 1984 Act section 11(4)(b).
- Commonwealth Parliamentary Debates, House of Representatives,
11 March 1999, p. 3762 (Williams).
- Damien Freeman 'Public Information Machinery and the 1999
Referenda' (1999)10, Public Law Review, p. 243.
- Of which the author was a member.
- Commonwealth Parliamentary Debates, House of Representatives,
vol. 74, 1914, p. 2420.
- Royal Commission on the Constitution, Report 1929, p.
- Bennett and Brennan, op. cit., p. 11.
- For a list to 1988, see Brian Galligan and J. R. Nethercote,
eds, The Constitutional Commission and the 1988
Referendums, CRFFR, 1989, pp. 138-146.
- 'Australia', in XX Roundtable 396, p. 409.
- K. Bailey, 'Report of the Royal Commission on the Constitution
of the Commonwealth', reprinted in W. Prest and R. Mathews, The
Development of Australian Fiscal Federalism, ANU Press, 1980,
- Colin Hughes, 'Commonwealth Constitution: Methods of Initiating
Amendments' in Constitutional Amendment Sub-Committee, Report to
the Standing Committee of the Australian Constitutional Convention,
op. cit., pp. 34, 36-38. (hereafter Hughes, Initiating Amendments).
- Commonwealth Parliamentary Debates, House of Representatives,
vol. 113, 2 June 1926, p. 2537.
- G. Sawer, Australian Federal Politics and Law
1901-1929, Melbourne University Press, p. 292.
- Commonwealth Parliamentary Debates, House of Representatives, 9
March 1928, p. 3768.
- 'Australia', in XX Roundtable op. cit., p. 415.
- Constitution Alteration (Power of Amendment) 1930.
- Constitutional Commission, Report 1988, p. 33.
- ibid., Appendix A, p. 895.
- ibid., p. 33.
- ibid., p. 46.
- ibid., pp. 39-41.
- ibid., p. 42.
- Estimated at c. 70 per cent: Constitutional Commission, op.
cit., para 1.56.
- Australian Constitutional Convention, Debates,
Brisbane, 1985, p. 297.
- ibid., p. 301.
- ibid., p. 366.
- ibid., p. 42.
- ibid., p. 46.
- ibid., p. 48-49.
- Senate Standing Committee on Legal and Constitutional Affairs,
'The Constitutional Qualifications of Members of Parliament',
Parliamentary Paper no. 131/1981; House of Representatives Standing
Committee on Legal and Constitutional Affairs, 'Aspects of
Section 44 of the Australian Constitution', July 1997.
- Commonwealth Parliamentary Debates, House of Representatives,
24 May 1956, p. 2453.
- Commonwealth Parliamentary Debates, House of Representatives,
15 February 1956, p. 18.
- Sydney Morning Herald, 25 May 1956, p. 5.
- Sydney Morning Herald, 21 June 1956.
- J.E. Richardson, ''The Parliamentary Joint Committee on
Constitutional Review'', Canberra Bulletin of Public
Administration, pp. 154, 155.
- Victorian Parliamentary Debates, Legislative Assembly, 1958-59,
vol. 257, p. 3009.
- Sydney Morning Herald, 23 June 1960.
- Geoffrey Sawer, ''Reforming the Australian Constitution'',
XXXII, Australian Quarterly, 1960, p. 29.
- Commonwealth Parliamentary Debates, Senate, 27 March 1957, p.
- Canberra Times, 3 October 1958.
- Commonwealth Parliamentary Debates, House of Representatives,
13 April 1961, p. 820.
- ibid., p. 809.
- ibid., p. 811.
- Commonwealth Parliamentary Debates, House of Representatives,
12 April 1962, p. 1635.
- Commonwealth Parliamentary Debates, House of Representatives,
11 April 1965, p. 533.
- For the 1973 session see Australian Constitutional Convention,
Proceedings, pp. lxxix-xcvi.
- Heather McRae and Anne Mullins, The Australian
Constitutional Convention 1973-1985: A Guide to the Archives,
Centre for Comparative Constitutional Studies, 1998, p. 3.
- ibid., p. 183.
- ibid. pp. 183-226.
- The normal rule was that Government and Opposition had equal
representation. Departures from it occurred, but were always
- In 1973 and 1974.
- Casual Vacancies, Referendums and Retirement of Judges in 1977.
Simultaneous Elections was unsuccessful in 1977, as was Interchange
of Powers in 1984.
- Bennett and Brennan, op. cit. p. 11.
- McRae and Mullins, op. cit., pp. 222-225.
- Particularly the Tasmanian and, to a lesser extent, the
Victorian and South Australian delegations.
- Cheryl Saunders, 'Historical Overview', in McRae and Mullins,
op. cit., pp. 4-5.
- Constitutional Commission, Report, op. cit., p. 39.
- Commonwealth Parliamentary Debates, House of Representatives,
26 March 1996, pp. 3061-3. (Howard)
- Colin Hughes, 'Commonwealth Constitution: Methods of Initiating
Amendments', op. cit., p. 36.
- ibid., p. 37.
- John McMillan, Gareth Evans, Haddon Storey, Australia's
Constitution: Time for Change?, Allen and Unwin, 1983, pp.
- Constitutional Centenary Foundation 'If we wanted to review the
Constitution, how would we do it?'
- Alexander Downer MP, Press Conference, 10 November 1994.
- Constitutional Convention 1999, Report, pp. 986, 991.
- Joint Select Committee on the Republic Referendum.
- Sydney, 1891, p. 891. See also pp. 892-3 (Cockburn); cf. pp.
- 5.4 million voted in the referendum, from an electorate of
nearly 12 million.
- Constitutional Convention (Election) Act 1997.
- The legislation passed the Senate on 28 August 1997. The formal
notice of the election was issued on 29 September and nominations
closed ten days later. Voting papers were posted between 3 and 14
November and the poll closed on 9 December. The Convention met on
- Moira Rayner, 'A view from the fringe', (1998) 21
University of New South Wales Law Journal, pp. 908, 911.
- Butler and Ranney, op. cit., p. 5. See also The
Economist 'Happy 21st century, voters', 21 December 1996.
- For example, early proposals seeking authority to nationalise
industries (1911, 1913, 1919) or to outlaw the Communist Party
- For example, proposals dealing with trade practices (1911,
1913, 1919,1926) or seeking to free regulation from the strictures
of section 92 (1937, 1946).
- For example, proposals dealing with corporations regulation
(1911, 1913, 1919, 1926).